In deciding whether to grant a new trial, the court should be mindful of the jury's special function in our legal system and hesitate to disturb its finding. Milos v. Sea-Land Service, Inc., 478 F. Supp. 1019, 1021 (S.D.N.Y. 1979), aff'd. mem., 622 F.2d 574 (2d Cir.), cert. denied, 449 U.S. 954, 101 S. Ct. 360, 66 L. Ed. 2d 219 (1980). Nevertheless, if the court after considering all the evidence and the jury's verdict is left with the "definite and firm conviction" that a mistake has been committed, it should grant a new trial. 11 Wright, Miller & Cooper, supra, at § 2806.

A.

Defendants first argue that "there was nothing defamatory in connection with the Lewis case." Defendants' Mem. at 3. A defamatory statement is one "which tends to expose a person to scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person." D.C. Jury Instruction 17-1; Prosser and Keeton on Torts 773 (5th ed. 1984); Restatement (Second) of Torts § 559 comment e (1965). There was evidence introduced at trial from which a jury could reasonably conclude that defendant Elliott prepared an affidavit stating that he had been told by plaintiff that plaintiff had a job offer from the successful bidder for a DHHS contract, and that defendant knew this affidavit was to be attached to a bid protest letter alleging that plaintiff violated the Ethics in Government Act. Plaintiff's Exhibits F, G. The two communications assert that plaintiff breached an ethical duty imposed by his government job. Thus, when viewed according to all the circumstances surrounding publication there is ample basis for a jury finding that the communications are capable of a defamatory meaning. See Olinger v. American Savings and Loan Assoc., 133 U.S. App. D.C. 107, 409 F.2d 142 (D.C. Cir. 1969). Neither a new trial nor a judgment notwithstanding the verdict is justified on this ground.

B.

Defendants next argue that the Court should have held that their conduct was protected by an absolute privilege. Absolute privilege attaches to statements made "preliminary to or in the course of a judicial proceeding" Brown v. Collins, 131 U.S. App. D.C. 68, 402 F.2d 209, 212 (D.C. Cir. 1968) (quoting Restatement (Second) of Torts § 587). The purpose of the privilege is to protect the integrity of judicial proceedings by enabling participants "to state and support their positions without instilling a fear of retaliation, i.e., an action for damages." Sturdivant v. Seaboard Service System, Ltd., 459 A.2d 1058, 1060 (D.C. App. 1983).

Defendants argue that the bid protest, and derivatively the attached affidavit now at issue, should be viewed as part of a judicial proceeding because the bid protest procedure was "an administrative proceeding within the United States Government which wound its way to a final conclusion." Defendants' Mem. at 3. "Judicial" proceedings can include quasi-judicial proceedings, such as arbitration proceedings, Sturdivant, supra, 459 A.2d at 459, or a hearing before the Hacker's License Appeal Board, Mazanderan v. McGranery, 490 A.2d 180 (D.C. App. 1984).

King v. Hildebrandt, 331 F.2d 476 (2d Cir. 1964); Slater v. Taylor, 31 App. D.C. 100, 104-05 (1908). Although this rule was applied in the context of an affidavit preliminary to a lunacy proceeding, it could by analogy apply as well in the civil context. Here, it cannot be said that undisputed facts establish probable cause since no facts other than defendant Elliott's testimony confirm the alleged conversation or its content. For these reasons, the affidavit at issue should not entitle defendant Elliott to an absolute privilege for his statement. Defendant Elliott's only legitimate interest in making the affidavit at issue was to bring to the government's attention, although indirectly through a third party's bid protest, potentially unethical conduct of a government employee. As such, the affidavit is properly characterized as a petition to the government for redress of a grievance rather than a filing in a quasi-judicial proceeding.

In the recent Supreme Court case of McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985), an individual wrote to the President as well as other United States government officials questioning the character of an applicant for the position of United States Attorney. The Supreme Court held that when an individual is exercising this right under the Petition Clause of the First Amendment, only a qualified privilege attaches. The Court stated the strong policy reasons behind its holding:

an individual, who maliciously, wantonly, and without probable cause, asperses the character of a public officer in a written or printed paper, delivered to those who are invested with the power of removing him from office, is responsible to the party injured in damages, although such paper is masked under the specious cover of investigating the conduct of such officer for the general good. Public policy demands no such sacrifice of the rights of persons in an official capacity, nor will the law endure such a mockery of its justice.

The presentation of complaints about an auditing IRS agent's professional conduct to his superiors is a classic example of the right to petition.

Id. at 1343 (footnote omitted).

Finally, our Court of Appeals has cautioned that under the "well-settled common law principle", grants of absolute immunity "ought to be interpreted narrowly to serve only the purposes justifying the immunity." Webster v. Sun Co., Inc., 235 U.S. App. D.C. 154, 731 F.2d 1, 4 (D.C. Cir. 1984). Here, defendant Elliott and his company and co-defendant, Rehab, were not eligible to bid on the contract at issue and thus were not privileged to file the bid protest. The crux of Elliott's affidavit, and in fact of the bid protest itself, was an attack on the ethics of a government employee. As such, it is properly viewed as a petition to the government. It is in fact generous to view it as such, since Elliott did not deliver his grievance directly to the proper government authority to hear his grievance, but instead went through a private corporation and its bid protest. The fact that he took this less direct and more questionable route should not work in his favor by affording him a potentially absolute privilege from suit as a part of a bid protest. Cf. Joftes v. Kaufman, 324 F. Supp. 660, 664 (D.D.C. 1971). He did, however, anticipate that his affidavit would support a grievance directed to the government. Under the reasoning of the Petition Clause cases, supra, a qualified privilege was properly held to apply to defendants' conduct. Supplemental Pretrial Order at 2 (filed Oct. 2, 1985). Consequently, neither a new trial nor a judgment notwithstanding the verdict is justified on this ground.

C.

Defendants further argue that plaintiff was a public official, thus it was his burden under Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974) to prove "actual malice" by "clear and convincing evidence." Defendants' Mem. at 3-4. Under the actual malice standard, a plaintiff must prove that a defendant acted "with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). The actual malice standard preempts state tort law not only as to the standard of proof, but also as to the burden of proof. Thus, a plaintiff must prove actual malice by clear and convincing evidence.

In this case, the Court gave instructions on common law malice, not actual malice. Common law malice is "frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights." Cantrell v. Forest City Publishing Co., 419 U.S. 245, 252, 42 L. Ed. 2d 419, 95 S. Ct. 465 (1974). Malice need only be proved by a preponderance of the evidence. D.C. Jury Instruction 17-13.

It should be emphasized that this ruling [as to government officials] is limited to high-ranking Government officials. It does not comprehend the entire Government personnel. The host of Federal, State, municipal and local government administrators, scientists, lawyers, physicians, secretaries, clerks, inspectors of various kinds, policemen, firemen, letter carriers, mechanics, laborers, and others, are not affected and are not deprived of their rights under the law of libel. By entering Government employment, a person does not lose any of his civil rights. The exception is limited to high-ranking Government officers in order to secure the constitutional freedom for every citizen to discuss and criticize his Government.

Clark v. Pearson, 248 F. Supp. 188, 193-94 (D.D.C. 1965). Plaintiff here does not appear to hold the type of government position set out by the Clark court as appropriate for application of the actual malice standard. Second, the particular allegation was that plaintiff had told defendant certain incriminating facts. Defendant claims there were no witnesses to the conversation, and if, as plaintiff alleges, it never occurred, of course there would be none. Because he was forced to prove a negative, it would have been extraordinarily difficult for plaintiff to prove by clear and convincing evidence that the conversation recounted by defendant Elliott with "a straight face" did not, in fact, occur.* Another factor of concern in this case was that defendant Elliott did not go to the government with his allegations, but instead went to a private company, thereby jeopardizing his claim to a qualified privilege for his conduct. See Bradley, supra, 643 F.2d at 1033 (qualified privilege applies when information communicated to "proper authorities").

Finally, in selecting the preponderance of the evidence instruction in this case, the Court was also sensitive to Justice White's concerns and suggestion in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). Justice White recognized that "criticism and assessment of the performance of public officials and of government in general are not subject to penalties imposed by law." 105 S. Ct. at 2950 (White, J., concurring). He continued, however, to observe:

But these First Amendment values are not at all served by circulating false statements of fact about public officials. On the contrary, erroneous information frustrates these values. . . . Yet in New York Times cases, the public official's complaint will be dismissed unless he alleges and makes out a jury case of a knowing or reckless falsehood.

. . . .

If the plaintiff succeeds in proving a jury case of malice, it may be that the jury will be asked to bring in separate verdicts on falsity and malice. In that event, there could be a verdict in favor of the plaintiff on falsity, but against him on malice. There would be no judgment in his favor, but the verdict on falsity would be a public one and would tend to set the record right and clear the plaintiff's name.

Id. at 2950 & n.2. Here, plaintiff has received his verdict on falsity. The jury was given a bifurcated verdict form. The first question asked was:

Verdict Form (filed Oct. 10, 1985). The jury answered "Yes." It must be noted that whatever the result of subsequent proceedings in this case, plaintiff has vindicated his name and thus has received the primary component of the relief he sought.

Despite all these concerns, a close review of the case law, not endeavored by either of the parties to this action, reveals that the court arguably instructed the jury as to the incorrect standard and burden of proof. As discussed supra, defendants' privilege is properly determined under the Petition Clause of the First Amendment. The recent Supreme Court case of McDonald, supra, held that the right to petition is protected by a qualified privilege, and that damages could be recovered upon a showing that the defendant acted with "malice." 105 S. Ct. at 2791. But, "malice" under North Carolina law, the law at issue in McDonald, is defined in terms consistent with the "actual malice" standard of New York Times. Moreover, the Court's sua sponte review of the district court opinion in that case reveals that the burden of proof to defeat the qualified privilege to petition was to have been clear and convincing evidence. Smith v. McDonald, 562 F. Supp. 829, 843 (M.D.N.C. 1983), aff'd., 737 F.2d 427 (4th Cir. 1984), aff'd., 472 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985). Thus, although McDonald provides precedent for applying a qualified, rather than an absolute, privilege to defendants' conduct in this case, it does not literally justify deviating from the actual malice standard and burden of proof of Gertz and New York Times. Even though the McDonald decision does not literally justify deviating from the clear and convincing evidence burden of proof, a plausible reading of the decision directs courts to apply their own state law, qualified privilege and malice being common law concepts. In the District of Columbia, a qualified privilege can be overcome by a showing of malice by a preponderance of the evidence. D.C. Jury Instruction 17-13. Accordingly, the Court so instructed the jury.

If the McDonald decision is read to require application of the actual malice standard and the clear and convincing burden of proof, it could also be argued that because the Supreme Court has applied the same standard of protection under the Speech Clause and the Petition Clause of the First Amendment, the same limitations on that protection should also apply. That is, perhaps the plaintiff must be either a public official or a public figure in order to be required to meet the actual malice mandates of the Petition Clause, as well as the Speech Clause. The Supreme Court has, however, recently placed renewed emphasis on the character of the speech at issue in a defamation case, as opposed to the status of the victim or the speaker, in determining when the actual malice standard should apply. According to the Court in Dun & Bradstreet, supra, 105 S. Ct. at 2941: "The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern." The Court reiterated that: "it is speech on '"matters of public concern"' that is 'at the heart of the First Amendment's protection.'" Id. at 2943-44 (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978) (quoting Thornhill v. Alabama, 310 U.S. 88, 101, 84 L. Ed. 1093, 60 S. Ct. 736 (1940))). The right to petition the government for redress of grievances is "among the most precious of the liberties safeguarded by the Bill of Rights." United Mine Workers of America, District 12 v. Illinois State Bar Association, 389 U.S. 217, 222, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967). Moreover, "the right to petition is logically implicit in and fundamental to the very idea of a republican form of governance." Stern, supra, 547 F.2d at 1342 (citing United States v. Cruikshank, 92 U.S. 542, 552, 23 L. Ed. 588 (1875)). Thus, the First Amendment concern in this case is very strong. Furthermore, the Court in Gertz, supra, recognized the high price demanded under the actual malice standard:

418 U.S. at 342-43. Under the above articulated theories, it might not be unjust for plaintiff in this case to be required to prove by clear and convincing evidence that defendants acted with actual malice. Here, the subject of the speech was the ethics of a government employee and thus his fitness for office. This subject matter is quintessentially one of public concern. Consequently, a balance between the First Amendment concern and the state interest in damage recovery by the particular plaintiff may require application of the actual malice standard.

Even under an analysis which looks to the status of the plaintiff, this Court may have been bound to find the plaintiff here to be a public official. Cases from other federal and state jurisdictions interpreting the meaning of the term "public official," even as against non-media defendants, give the term a broad interpretation. The court in Rusack v. Harsha, 470 F. Supp. 285 (M.D. Pa. 1978) found that a supervisory contract negotiator at the United States Navy Ships Parts Control Center was a public official for purposes of a suit against a private individual who wrote an allegedly defamatory letter to the Secretary of Defense. Relevant to the court was that plaintiff:

Id. at 298. The court in Karr v. Townsend, 606 F. Supp. 1121 (W.D. Ark. 1985) found a deputy sheriff to be a public official in a suit against the acting sheriff who terminated him and allegedly libeled him. Federal drug enforcement agents were held public officials for purposes of a counterclaim against an arrestee for defamation. Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977). Parents of high school students presented a list of grievances to the school board concerning a teacher's conduct; the teacher was held to be a public official. Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267, 270 (1978). Finally, in a defamation action against neighbors who mailed a letter to a detective's supervisor alleging that he threatened children and kicked pets, the detective was deemed a public official. Roche v. Egan, 433 A.2d 757, 763 (Me. 1981).

Here, plaintiff had, or was perceived to have, power over the awarding of government contracts. Rosenblatt, supra; Rusack, supra. The bid protest and affidavit related to the conduct of his official duties and referred to a specific federal statute which circumscribed his conduct. Accordingly, plaintiff may well be a public official for purposes of this defamation action, in which case he should have been required to prove actual malice by clear and convincing evidence. Because of the considerable doubt on the subject of the standard and burden of proof, neither a directed verdict for defendants nor a new trial is justified on this issue. However, if there is to be a new trial, it would be necessary to revisit, hopefully with guidance from the Court of Appeals, the burden and standard of proof required.

D.

Defendants claim that the court should grant a new trial for another reason: the excessive size of the verdict. Here, the rule is:

Plaintiff testified that he calculated that he had lost a total of $352,000 because of taking the early retirement option from DHHS, a decision he claimed was precipitated by defendants' publications and their aftermath. Transcript of Proceedings (Tr.) (Oct. 7, 1985); Defendants' Mem. at 9.

Dr. Aaron Stills testified that plaintiff had been attending psychological sessions once a week since June, 1985, at a rate of $60 a session. Stills further testified that treatment would continue for at least one year. Tr. (Oct. 9, 1985);

Dr. Applewaite testified that he treated plaintiff's physical conditions at Group Health Association, Tr. (Oct. 9, 1985), and plaintiff's medical records were submitted into evidence. Plaintiff's Exhibit R. These records contained no evidence as to the cost of the medical services provided.

After Gertz, supra, a plaintiff cannot recover future damages absent proof that they will actually be sustained. 418 U.S. at 349-50; D.C. Jury Instruction 17-16 & comment. Plaintiff offered the figure of $352,000 as his future lost earnings, but offered no proof that he would actually sustain damages in that amount. His current salary at a consulting firm is $15,000, but there is no reason to believe that it could not increase or plaintiff will not change to a higher paying job. The figure offered by plaintiff must therefore be deemed insufficient as to future damages. Plaintiff testified that the figure was to compensate him for damages suffered from his retirement to the age of 74. He retired two years ago, and he is now 49. He thus calculated his damages for a 25-year period. The jury could reasonably award him only 2/25 x $352,000 = $28,160. But there is no indication that the $15,000 per year received by plaintiff from his other job was factored into the $352,000 figure announced by plaintiff as his calculated lost earnings. For the jury to assume that it was included in plaintiff's calculation, without testimony to that effect, would be for it to engage in impermissible speculation. The approximate figure of $15,000 multiplied by the same two-year period since retirement equals $30,000 -- approximately the amount the jury could have reasonably awarded for earnings actually lost as a result of the defamation at issue. The two amounts cancel each other out, thus the jury could not reasonably award plaintiff any amount for earnings actually lost.

Defendants questioned at trial, and question again in these motions, the qualifications of Dr. Aaron Stills, offered by plaintiff as an expert witness to testify on plaintiff's mental health. Dr. Stills testified that he was educated at Howard University, that he received a B.A., M.A., and Ph.D., and that he received his M.D. from Columbia. He further testified that he has been in private practice since 1977 and holds a certificate from the National Academy of Certified Mental Health Counselors. He indicated that he chose certification as a mental health counselor as an alternative to certification as a psychologist because the former emphasizes a preventative approach. He testified that he sees patients on a regular basis, approximately ten per week, and that physicians regularly refer patients to him.

Id. at 644 (emphasis in original). Moreover, it is the general rule that the "training and specialization of the witness goes to the weight rather than the admissibility of evidence." Baerman v. Reisinger, M.D., 124 U.S. App. D.C. 180, 363 F.2d 309, 310 (D.C. Cir. 1966).

Here, Dr. Stills testified extensively as to his training and qualifications. He went to an accredited school, obtained three advanced degrees, and sees patients on a regular basis. Plaintiff's examination and defendants' cross examination of the witness all occurred within the jury's presence, thus allowing it to assess the weight to be given the opinions advanced. The qualification of Dr. Stills as an expert witness was not in error.

Dr. Stills testified that plaintiff would require treatment for at least another year, and that he had been receiving treatment since June, 1985. The maximum amount the jury could award for the cost of psychological treatment was thus [14 (weeks from June until October 7 trial) x $60 = $840 (costs already incurred)] plus [$60 x 52 (weeks in a year) = $3120] = $3960.

Dr. Applewaite testified that he treated plaintiff for physical symptoms which could be caused by anxiety, and the jury received plaintiff's medical records as an exhibit. But even if the jury could have found a proper casual connection between the symptoms and the libel, there was no evidence as to the cost of any of the plaintiff's treatments. To allow the jury to award any amount would be to allow it to engage in impermissible speculation. Consequently, any award for medical expenses would be unreasonable. The maximum amount of damages due to expenses incurred that a jury could reasonably award was thus $3960.

The jury could also award damages to compensate plaintiff for the detraction from his reputation and for mental anguish. As to damages to reputation, recovery of general intangible damages is permissible without proof of actual loss, Afro-American Publishing Co. v. Jaffe, 125 U.S. App. D.C. 70, 366 F.2d 649, 659-60 (D.C. Cir. 1966), but they are extremely difficult to quantify. Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F. Supp. 421, 431 (D.D.C. 1972). It must be remembered that the award is intended to compensate plaintiff, not punish defendants, recovery of punitive damages having been explicitly denied. Thus a nominal recovery may be sufficient to vindicate the injury to reputation. Id. (noting that $1 may be enough). As the court in Afro-American Publishing Co., supra, observed:

The allowance of nominal damages performs a vindicatory function by enabling the plaintiff to brand the defamation publicly as false.

366 F.2d at 660; see also Dun & Bradstreet, supra, 105 S. Ct. at 2948-54 (White, J., concurring) (quoted at Part II, C, supra). Such nominal recovery is especially appropriate where events subsequent to the publication at issue substantially cleared plaintiff's name. Id. Here, an investigation occurred pursuant to defendant's publication after which plaintiff was cleared of wrong-doing and the bid protest, denied. Thus any injury to plaintiff's reputation in the eyes of others could only be nominal. This fact is confirmed by the lack of testimony at trial as to plaintiff's diminished reputation among his co-workers at DHHS or within the community at large. Most important, the jury's special verdict has vindicated plaintiff by its determination that Elliott's statement was false. The maximum reasonable amount the jury could have awarded for damage to plaintiff's reputation is thus $100.

Here, the Court of Appeals has a full record on which to make a definitive decision on two critical legal issues. The questions of whether an absolute privilege or a qualified privilege applies, and whether if a qualified privilege applies the actual malice standard and burden of proof should apply, are controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal from this order may materially advance the ultimate termination of this litigation. Accordingly, the accompanying Order will certify this question to the Court of Appeals pursuant to 28 U.S.C. § 1292(b).

ORDER

For reasons stated in the accompanying Memorandum, it is this 16th day of January, 1986, hereby.

ORDERED: that Defendants' Motions for Judgment Notwithstanding The Verdicts, And, In The Alternative, A New Trial should be, and hereby are, DENIED, conditioned upon the consent to a remittitur by plaintiff to all damages in excess of $54,060; and it is further

ORDERED: that plaintiff shall notify the Court within twenty (20) days of this Memorandum and Order with respect to their decision regarding the remittitur; and it is further

ORDERED: that should plaintiff fail, within twenty (20) days of this Memorandum and Order, to consent to a remittitur, then there shall be a new trial at which the Court may well, unless otherwise instructed by the Court of Appeals, limit the jury's deliberations to damages; and it is further

ORDERED: that should plaintiff fail to consent to a remittitur within twenty (2) days, the following certification to the Court of Appeals shall come into effect:

Pursuant to 28 U.S.C. § 1292(b), this Court certifies that the questions of whether an absolute privilege of a qualified privilege applies, and whether if a qualified privilege applies the actual malice standard and burden of proof should apply, are controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal from this order may materially advance the ultimate termination of this litigation.

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